Denney, Ida Ramirez v. Dillard Texas Operating Limited Partnership d/b/a Dillard's--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IDA RAMIREZ DENNEY, )

) No. 08-01-00442-CV

Appellant, )

) Appeal from the

v. )

) 210th District Court

DILLARD TEXAS OPERATING LIMITED )

PARTNERSHIP d/b/a DILLARD=S, ) of El Paso County, Texas

)

Appellee. ) (TC# 97-4260)

)

MEMORANDUM OPINION

Appellant, Ida Ramirez Denney, appeals from a judgment on the verdict in favor of Appellee, Dillard Texas Operating Limited Partnership d/b/a Dillard=s (ADillard=s@). On appeal, Appellant raises a single issue: whether the trial court abused its discretion in excluding certain impeaching testimony. We reverse and remand for new trial.

SUMMARY OF THE EVIDENCE

Appellant has worked in retail sales for approximately a decade. Most recently, she worked for Dillard=s in El Paso, Texas at the Sunland Park location. She was recruited and hired by Dillard=s in October 1995, as a sales associate.

On April 1, 1999, Appellant injured her right shoulder and knee while at work. At the time of the accident, Appellant was pregnant. The injury was immediately reported to Dillard=s and in turn, to the Texas Workers= Compensation Commission. After completing the necessary paperwork, Appellant went home. She was in pain from the injury and unable to drive herself. The following day, she went to the emergency room for treatment.

Ultimately, Appellant was referred to the El Paso Orthopedic Surgery Group and diagnosed with a torn shoulder. She was then treated with ultrasound therapy for three weeks. Appellant was not allowed to work during this period. Her treating physician, Dr. Sides, then recommended surgery. Due to Appellant=s pregnancy, surgery was delayed, but Appellant remained unable to work. Throughout her treatment and time off from working, Appellant stayed in contact with Dillard=s, supplying management with the required doctor=s notes indicating she was released from work. It is undisputed that she complied with all of her employer=s leave-of-absence regulations and completed all necessary medical paperwork. Appellant=s child was born on August 1, 1999. Surgery for her shoulder was then scheduled for October 19, 1999. Appellant notified Dillard=s in person of her surgical appointment on October 5, 1999. Appellant=s surgery was successfully performed as scheduled on October 19. On October 19, she received a certified letter from Dillard=s notifying her she had been terminated. The listed reason for termination was failure to return from a leave of absence.

Appellant was terminated pursuant to a policy allowing employees to be terminated if they are on a leave of absence from work for more than six months. The policy expressly includes employees who are on workers= compensation leave. Appellant was aware of the policy generally, but unaware that a leave-of-absence status applied to her while she was on workers= compensation leave. She never received a leave-of-absence form from the company indicating when her period of leave began or when it would expire. Although required by Dillard=s policy, no such document was created in Appellant=s case. According to Appellant=s uncontroverted testimony at trial, no one ever discussed her status, the leave-of-absence policy, or the possibility that she might lose her job because of her absence while on workers= compensation leave.

Appellant sued Dillard=s under Texas Labor Code Ch. 451, which prohibits employer retaliation against workers= compensation claimants. Appellant=s theory of the case was that she was fired because she sought workers= compensation benefits for her injury. Dillard=s claims Appellant was terminated because of a nondiscriminatory absence-control policy.

During trial, both parties focused on Dillard=s leave of absence policy. Appellant argued the policy was discretionary and inconsistently applied. Dillard=s maintained the policy was applied uniformly and without discretion. Two defense witnesses expressly testified that managers had no authority to extend leave to injured workers beyond six months. In response, Appellant sought to cross-examine these witnesses about Dillard=s interrogatory responses indicating two other employees[1] were allowed longer leaves of absence before they were terminated. Pursuant to a motion in limine requiring the attorneys to approach the bench before attempting to introduce evidence of Dillard=s treatment of other employees, Appellant twice explained to the court her desire to question the witnesses about the inconsistencies in their trial testimony and interrogatory responses. In each case, the court would not allow the impeaching evidence to be raised. Appellant=s attorneys were allowed to call and question one of the witnesses in order to make an offer of proof for the appellate record. At the conclusion of the offer of the proof, they again requested and were denied permission to cross-examine the witnesses before the jury. On appeal, Appellant now complains the trial court abused its discretion in excluding this impeaching evidence.

STANDARD OF REVIEW

A trial court=s decision to admit or exclude evidence is within its sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d. 750, 753 (Tex. 1995); Durbin v. Dal-Briar Corp., 871 S.W.2d 263, 268 (Tex.App.--El Paso 1994, writ denied), disapproved on other grounds, Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). We may reverse a judgment based upon the exclusion or admission of evidence only where: (1) the trial court did err; and (2) the error was reasonably calculated to cause and did cause rendition of an improper judgment. Gee v. Liberty Mutual Fire Insurance Co., 765 S.W.2d 394, 396 (Tex. 1989); LaCoure v. LaCoure, 820 S.W.2d 228, 235 (Tex.App.--El Paso 1991, writ denied). An appellant need not prove that Abut for@ the exclusion of the evidence a different judgment would necessarily result. Durbin, 871 S.W.2d at 267. Rather, it is sufficient if the appellant shows an improper verdict probably resulted. McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992); Brooks v. Housing Authority of City of El Paso, 926 S.W.2d 316, 321 (Tex.App.--El Paso 1996, no writ). Generally, all relevant evidence is admissible. Tex.R.Evid. 402; Durbin, 871 S.W.2d at 268. A trial court errs in excluding relevant evidence unless some rule or principle requires its exclusion. Id.

ANTI-RETALIATION LAW

Texas Labor Code ' 451.001 prohibits an employer from discharging or otherwise discriminating against an employee because that employee has filed a workers= compensation claim in good faith. Tex.Lab.Code Ann. ' 451.001 (Vernon 1996). In order to recover for wrongful termination under this provision, a plaintiff must show a causal connection between her compensation claim and her discharge. Garcia v. Levi Strauss & Co., 85 S.W.3d 362, 367 (Tex.App.--El Paso 2002, no pet.); City of University Park v. Van Doren, 65 S.W.3d 240, 248 (Tex.App.--Dallas 2001, pet. denied). This causal link may be established through circumstantial evidence. Id.; Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.--El Paso 1989, writ denied). Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision to terminate; (2) a negative attitude toward the employee=s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment of the injured employee in comparison to similarly situated employees; (5) providing incentives to refrain from reporting on-the-job injuries; and (6) evidence that the reason for the discharge was false. Garcia, 85 S.W.3d at 367-68; Lozoya v. Air Systems Components, Inc., 81 S.W.3d 344, 347-48 (Tex.App.--El Paso 2002, no pet.); Wyler Industrial Works, Inc. v. Garcia, 999 S.W.2d 494, 501 (Tex.App.--El Paso 1999, no pet.). As explained by the Supreme Court, Athe employee=s protected conduct must be such that, without it, the employer=s prohibited conduct would not have occurred when it did.@ Cont=l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996)(quoting the test first articulated in Tex. Dep=t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995)). It is not necessary to prove the workers= compensation claim was the sole motivation for the discharge. Cazarez, 937 S.W.2d at 451 n.3; Garcia, 85 S.W.3d at 367. Nor is it necessary to show the employee=s seeking of benefits was the principle, or even a substantial reason for her discharge. Cazarez, 937 S.W.2d at 451. Instead, the plaintiff need only show that but for the filing of the claim, the firing would not have occurred when it did. Id.; Lozoya, 81 S.W.3d at 347-48.

A defendant in a discrimination suit brought under Chapter 451 is entitled to prevail if it is proved that the negative employment action was the result of an application of a legitimate non-discriminatory policy. Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994). Under Carrozza, a defendant-employer may establish an affirmative defense by producing a nondiscriminatory reason for dismissal of the plaintiff-employee. Porterfield v. Galen Hospital Corp., Inc., 948 S.W.2d 916, 919 (Tex.App.--San Antonio 1997, writ denied); Gifford Hill American, Inc. v. Whittington, 899 S.W.2d 760, 763 (Tex.App.--Amarillo 1995, no writ). However, the affirmative defense is only available in those cases where the employer has applied the non-discriminatory policy in a uniform manner. Cazarez, 937 S.W.2d at 451; Carrozza, 876 S.W.2d at 313.

A central issue in this case is whether Dillard=s adheres to and uniformly enforces a reasonable absence-control policy. Dillard=s provided evidence of such a policy. Uniform enforcement of the policy does not constitute retaliatory discharge under the Labor Code. See Cazarez, 937 S.W.2d at 451; Carrozza, 876 S.W.2d at 313. Thus, the key question becomes whether Dillard=s uniformly enforces its policy. Two separate witnesses testified on behalf of Dillard=s as to the uniform application of the leave-of-absence policy. William Wilkson, the General Store Manager at the Dillard=s for which Appellant worked, first testified on direct examination, AI am telling the jury that if, if the person has, has gone past their expiration date, according to Dillard=s policy, then these individuals have been -- we have been instructed from Dillard=s to go ahead and terminate employment, and that would be, for all of them, without discretion.@ Later, on cross-examination the following exchange took place:

Defense Counsel: Mr. Wilkson, I want to show you this memo that Mr. Wenke was referring to you, and it shows that the policy is uniformly enforced, isn=t that correct?

Mr. Wilkson: We enforce that policy uniformly, with no discretion.

Defense Counsel: You were not picking on Ms. Denney?

Mr. Wilkson: No. If there were three or four people on there, they would have all fallen under the same policy for my store.

Scott McMurtrie, Dillard=s Operating Manager at the Sunland Park location, also told the jury Dillard=s policy was uniformly enforced. On direct examination, he testified as follows:

Mr. McMurtrie: Makes no difference. We have six months maximum leave and we don=t have any discretion. In the report, we uniformly apply this rule to all of our associates. If we started making decisions on our own on who should be excluded from that rule, we would be discriminating if we treat people differently.

Plaintiff Counsel: Okay.

Mr. McMurtrie: Wouldn=t be fair.

Plaintiff Counsel: Dillard=s has never, ever extended during your time at Sunland Park, has never extended leave for injured workers for more than six months?

Mr. McMurtrie: I have not seen it in any store. I know there=s a provision in the work rules that say if you work for Dillard=s more than ten years, you can request an extension.

Plaintiff Counsel: How about an employee who has worked less than ten years? Ever seen an employee or know an employee that Dillard=s has extended more than six months leave?

Mr. McMurtrie: No. I do not.

Plaintiff Counsel: That has never happened at Dillard=s, correct?

Mr. McMurtrie: Never happened in my store that I am aware of.

After each of these exchanges, Appellant approached the bench and asked permission to question the witnesses about inconsistent responses given in interrogatories. There was an especially lengthy discussion after the first witness testified. Appellant=s counsel argued that Mr. Wilkson=s testimony opened the door for questions related to other employees who had received more than six months leave before they were discharged. Defense counsel argued the other employees should not be compared to Appellant because they were not similarly situated. Essentially, the defense maintained that because the other employees worked for a different Dillard=s location and they may have been on leave for other reasons, they should not be considered for purposes of the case. Appellant=s counsel clearly responded that there was no intention of using the information for comparison, but rather for impeachment. Nonetheless, the trial court denied the request each time.

RULE 613(a)

Texas Rule of Evidence 613 relates to prior statements of witnesses and provides in part:

(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

Tex.R.Evid. 613(a). This rule allows a witness to be examined for impeachment purposes about a prior statement inconsistent with his present testimony. Id. The rationale for sanctioning such impeachment is to show the witness has a capacity for making errors and his testimony is unreliable. Cirilo v. Cook Paint & Varnish Co., 476 S.W.2d 742, 748 (Tex.Civ.App.--Houston [1st Dist.] 1972, writ ref=d n.r.e.); Cathleen C. Herasimchuk, Texas Rules Of Evidence Handbook, Rule 613, pp. 610-12 (4th ed. 2001). Rule 613(a) should be liberally construed. Arandav. State, 736 S.W.2d 702, 707 (Tex.Crim.App. 1987). This gives the trial judge discretion to admit any evidence that gives promise of exposing a falsehood. Id. In order to fall subject to the rule, a witness=s statement does not have to be directly and explicitly contradictory. See United States v. Dennis, 625 F.2d 782, 795-96 (8th Cir. 1980); see also Herasimchuk, p. 614. For example, the requirement of inconsistency is satisfied if a witness changes position on a topic. See United States v. McCrady, 774 F.2d 868, 873 (8th Cir. 1985). Moreover, a witness may be impeached with prior statements that are inconsistent with the impression the witness=s testimony generates. See Pylesv. State, 755 S.W.2d 98, 115 (Tex.Crim.App. 1988)(where Defendant=s testimony created the impression he was a non-violent person and had no intention of harming anyone in the commission of his crime and the State was allowed to impeach him with photographic exhibits showing writings he had made on his jail cell wall which indicated a propensity for violence). As a general rule, the jury should be allowed the opportunity to decide whether the statements are reconcilable or not. Herasimchuk, p. at 615.

APPLICATION OF LAW TO FACTS

In this case, Appellant=s attorneys sought to examine defense witnesses about the apparent inconsistency between interrogatory responses and testimony at trial. Dillard=s, through the testimony of two of its managers, steadfastly maintained any and all employees absent from work for more than six months would be discharged. Both witnesses claimed the policy demanded termination of such employees without discretion. Mr. McMurtrie went so far as to state he had not seen a deviation from the policy at any store. Appellant=s attorneys merely wished to question these same witnesses as to why their interrogatory responses indicated two other employees had been given leaves of absence for longer than six months. Such a line of questioning is allowed under Rule 613(a) as an inquiry regarding prior inconsistent statements. Tex.R.Evid. 613(a). This evidence was relevant for impeachment purposes. Tex.R.Evid. 402, 613(a). Whether Dillard=s policy has been uniformly applied to all employees is at the heart of this case. Further, we do not find the probative value of the evidence at issue to be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex.R.Evid. 403. Dillard=s essentially argues the interrogatory responses were not directly contradictory. As previously noted, they need not be. See Pyles, 755 S.W.2d at 115. Furthermore, by not allowing this evidence, the jury was left with the impression that all Dillard=s employees were always terminated at the time their leave of absence extended to six months. At minimum, the evidence Appellant sought to introduce would seem to conflict with this notion. As such, the trial court=s ruling was erroneous.

Having found the trial court erred in excluding impeaching evidence, we must now consider whether the error was reasonably calculated to cause and did cause rendition of an improper judgment. Gee, 765 S.W.2d at 396; LaCoure, 820 S.W.2d at 235. During deliberations, the jury sent the court a note asking Aif Dillard=s has ever made an exception to the 6 month LOA [leave-of-absence] limit on employees of less than 10 years.@ The court responded in writing, AYou have heard all of the evidence.@ The jury subsequently returned a verdict in favor of Dillard=s, finding it had not discharged Appellant for filing a workers= compensation claim.

The trial court=s exclusion of the impeachment evidence severely impeded Appellant=s ability to demonstrate that Dillard=s did not uniformly apply the policy used to justify her discharge. The jury=s inquiry accentuates the importance of the excluded evidence. Given the jury=s inquiry and the final verdict, we find this error probably caused the rendition of an improper judgment. Gee, 765 S.W.2d at 396; LaCoure, 820 S.W.2d at 235. Accordingly, the judgment of the trial court is reversed and the cause is remanded for new trial.

May 8, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

Larsen, J., Chew, J., and Preslar, C.J. (Ret.)

Preslar, C.J. (Ret.)(Sitting by Assignment)

[1] Anna Conger was injured on July 12, 1996, and terminated on May 2, 1997. Hanh Hodges was injured on October 5, 1995, and terminated on September 18, 1996. Both employees were terminated for failing to return from leaves of absence.